Free Radio v. the FCC: A Case Study of Micro Broadcasting*
Ted M. Coopman
Paper presented in Mass Communication Division at
the 1997 annual meeting of the National Communication Association, November,
After months of planning and testing, Free Radio Berkeley, an unlicensed 10-watt radio station, began broadcasting in 1993 at 104.1 FM. Operating below the minimum power required by the Federal Communications Commission (FCC), Free Radio Berkeley was not the first micro broadcasting station to go on the air. Unlicensed broadcasters, or pirates as they are often known, have existed since the advent of intensive radio regulation in the 1920s. What makes Free Radio Berkeley different from previous unlicensed broadcasters is the organizations direct challenge to governmental regulations that make such stations illegal.
Stephen Dunifer, the founder of Free Radio Berkeley (FRB), set out to challenge the FCCs rules through what he terms electronic civil disobedience. Dunifer is not alone in his defiance of FCC regulations. By 1997, at least eight unlicensed FM stations were in operation in the Greater San Francisco Bay Area. Moreover, the transmitter kits produced by Dunifer have been shipped both domestically and abroad. This suggests that the micro broadcasting movement is not broadcasting in general has received little scholarly attention (Phipps, 1990). This is also true of the micro radio movement, a modern incarnation of unlicensed broadcasting. One reason for the lack of research in this area of mass communication is micro radios relatively recent appearance on the broadcasting scene. Another reason is grounded in the complex nature of unlicensed broadcasting and micro radio. Investigations into micro broadcasting often involve regulatory, legal, free speech, technical, and social issues.
Unlicensed broadcasting is defined as broadcasting without the benefit of a license issued by the Federal Communications Commission (Communications Act, 1934). The vast majority of these broadcasters intentionally operate their stations without a license (Jones, 1988). Those who broadcast in this manner historically have been termed pirates (Yoder,1990). Micro radio refers to a specific class of unlicensed broadcaster that appeared in the late 1980s. Such radio stations broadcast under the minimum 100 watts of power mandated for a licensed radio station (69 FCC 2d 240, 1978). Further, these stations are typically non-commercial, broadcast on the FM band, and of a politically-activist nature (Fine, 1994; Milner, 1993;Shields & Ogles, 1992).
The Committee for Democratic Communication (CDC), part of the National Lawyers Guild, took up Kantako's case and pursue the FCC in the courts on several grounds concerning United States communication law. This challenge became increasingly important as the micro broadcasting movement spread across the country. Several other micro broadcasters followed Kantakos lead, including Stephen Dunifer in Berkeley, CA and Walter Dunn, Jr., the Black Rose, in Fresno, CA. Both Dunifer (McHenry, 1995) and Dunn (Graham, 1990) produced video tapes and other materials concerning micro radio station construction and operation. While Dunn had a much more powerful transmitter, 125 watts, like Kantako, Dunn started small (Milner, 1993).
The common goal of these micro broadcasters is to flood the United States with micro radio stations. This, in theory, will overload the FCC and force a decision on micro broadcasters right to operate (Dunifer, 1994). A similar instance occurred with the introduction and mass distribution of citizen band or CB radios. When CB radios first entered the market in the early 1970s, the FCC sought to license them for each unit sold. So many units were sold, and so few people took the time to apply for a license, that the FCC eventually gave up on the licensing idea all together (National Lawyers Guild, 1992).
As summarized by the CDC report: "Micro radio practitioners and members of their communities un-served by the present commercially based broadcast system have standing to challenge the FCC policy"(National Lawyers Guild, p. 116). The report sought to confirm this statement by citing Red Lion Broadcasting v. FCC (395 US 367, 390, 1969), in which the court confirmed that the rights of the listeners, not those of the speakers, are paramount. Also noted was the contention that, according to Red Lion, the First Amendment does not differentiate between those with licenses and those without.
Stephen Dunifer, a long-time activist in Berkeley, CA, is the primary organizer behind Free Radio Berkeley (FRB). This stations programming consists of music and political commentary (Ewell, 1995) and has been broadcasting 88.1 FM since the early1990s (Dinkelspiel, 1993; Milner, 1993). Dunifers background in electronics led him to research broadcasting technology and work out designs for micro transmitters. His operation started out being broadcast out-of-doors or from his 1964 Volvo station wagon. It since has switched to a fixed location. Although he never has been caught in the act of unlicensed broadcasting, the FCC has fined him twice for a total of $20,000 (Dunifer, 1994). Dunifer also publishes a newsletter, Reclaiming the Airwaves, which sells micro transmitter kits ranging from about $100, to several hundred dollars and conducts workshops on assembling these kits.
Another micro broadcaster in the San Francisco Bay Area is Richard Edmonson. Broadcasting at 93.7 FM Wednesdays and Saturdays from 8 p.m. to 10 p.m., San Francisco Liberation Radio (SFLR) programming consists of music and political commentary (Fine, 1994). Edmonson, usually broadcasts from his vehicle, in this case a Volkswagen van. SFLR received a Notice of Apparent Liability in 1993 for $10,000 from the FCC. Despite these legal troubles Edmonson continues to broadcast (Fine, 1994).
Both Dunifer and Edmonson are represented by the Commitee for Democratic Communication (CDC) in San Francisco. According to Edmonson, there are over 200 micro broadcasters operating in the United States (Fine, 1994). Kate Henton, FCC public relations officer in San Francisco, states, "We have very good reasons for requiring a license. . . . Its very common for these so called pirate broadcasters to use equipment that is frequency-unstable . . . that can potentially be very dangerous" (Fine, 1994, p.38). Usually the FCC has the right to inspect any station at any time to ensure that its equipment is functioning properly (FCC, 1992a). But, because broadcasting licenses are issued only to stations of 100 watts or more (69 FCC 2d 240) and micro broadcasters are well below that, the opportunity for inspection does not exist.
RQ 1: a) How has the micro broadcasting movement developed in the San
Francisco Bay Area? b) What is the "state of the art" of micro
broadcasting in the Bay Area?
Document Selection and Analysis
The FCCs data organization methods required a broad approach to document collection. Documents gathered and analyzed covered four primary areas: Information concerning the interdiction of unlicensed broadcasters; press reports and other outside documentation collected by the FCC; and legal documents.
The Committee for Democratic Communication (CDC) was the second source of documents for this study. These documents consisted almost exclusively of legal briefs associated with the Dunifer case. Other documents I obtained were secondary source material, such as press clippings, collected and compiled by the CDC.
Observation Procedures and Criteria
I recorded my observations at six primary events: the hearing for a request for a preliminary injunction by the FCC against Stephen Dunifer of Free Radio Berkeley on January20, 1995, with arguments heard by Judge Claudia Wilken; a rally for the defendant which took place outside the Federal District Courthouse in Oakland, CA prior to that hearing; a station meeting of Free Radio Santa Cruz staff members in April 1995; and a National Lawyers Guild Forum on micro radio on September 22, 1995 in Berkeley, CA.; The First Micro Radio Conference in San Jose, CA on April, 6 1996.; and the First International Free Radio Micro Broadcasting Conference on November, 8, 1996 in Oakland, CA . In addition, I recorded field notes for all interviews conducted.
Primarily, I designed questions to collect information concerning events, policies, procedures, and time-lines. I also included questions to elicit interviewees' perspectives or opinions on specific and general topics The micro broadcasters interviewed were asked questions which focused on organizational structure, station operation,and encounters with theFCC. In addition, I asked questions concerning their motivations and viewpoints. I recorded field notes after each interview concerning my reactions, the physical interview environment, and interviewees nonverbal behaviors.
The Origins of the San Francisco Bay Area Micro Radio Movement
In the late 1980s and early 1990s, a conflict arose concerning amplified music at Peoples Park. In his interview, Tom Schreiner of Free Radio Santa Cruz stated that the City of Berkeley set up an apparently confusing permit procedure that resulted in the Berkeley police confiscating amplification equipment from several concerts at the park. According to Schreiner, someone had the idea of installing a half-watt FM transmitter on stage. The audience could then bring portable radios that would be tuned to the half-watt transmitter that would, in turn, broadcast the music on stage. A half-watt transmitter is legal under Part 15 of the Communications Act. This would make the regulated amplification equipment unnecessary and bypass the city ordinance. The concept worked and successfully circumvented the ordinance. Schreiner attributed the use of the transmitter to Dunifer of Free Radio Berkeley.
Dunifer's initial motivation for starting the process that resulted in Free Radio Berkeley, the Free Communications Coalition, and the San Francisco Micro Radio Movement, was the Gulf War in 1990. It was Dunifer's total and absolute disgust with what happened during thewar that spurred him to action: Dunifer explains; "The media essentially moved into a spare office in the Pentagon and tried to make it some national celebration that we murdered several hundred thousand people in that part of the world." It was Dunifers perception that the media were coopted by the Pentagon and became a propaganda tool for American foreign policy.
Dunifer is a veteran of numerous other social causes. He describes himself a full-time community activist. However, he stated that his experience in communications predated his role as activist. His first job, at age 17, was as a broadcast engineer at a television station . At that time he received his First Class Radio and Telephone License. Dunifer described himself as a self-taught engineer and technician who has spent most of his life being self employed in those trades. Therefore, it is not surprising that this would eventually merge with his activist inclinations and lead to an electronicmedia-based incarnation. As noted by Ewell (1995), although the movement is essentially non-hierarchical, Dunifer is the conceptual leader of, and a primary player in, the day-to-day operations of Free Radio Berkeley and the Free Communications Coalition.
The Micro Radio Movement Forms
Another aspect of the People's FCC is the design, assembly, shipping, and marketing of micro radio transmitter kits and related equipment. Schreiner observed that a majority of micro radio stations in California use Free Radio Berkeley kits, although similar kits have been available from other sources. The size of a shoe box and getting smaller all the time, these transmitters are more transportable and efficient with each new generation. The FRB operation has supplied transmitters to the United Nations for developing nations, primarily the Philippines, and the Chiapas Movement in Mexico. According to Dunifer, the Free Communications Coalition operation has shipped in excess of 400 transmitter kits domestically as of March 1995.
The third aspect of the coalition has been the activist/outreachprogram. According to Dunifer, this is the most influential part of the movement. This involves media outreach, public education, demonstrations, and the general goal of spreading the word ofmicro radio to the nation and the world. The activist/outreach program includes a newsletter, Reclaiming the Airwaves, with a circulation of 10,000 world wide; an Internet site; and a communications network that reaches activists around the globe
While Free Radio Berkeley has been selling transmitter kits since the late 1980s, the first full broadcast of a Free Radio Berkeley transmitter was at a Rainbow Gathering in April 1992 using an early prototype transmitter. In December 1992 and January 1993 Dunifer broadcast from in front of KPFA-FM, a Pacifica Foundation Network station in Berkeley. KPFA is the flagship station of the Pacifica Network, a private nonprofit organization. Over the past three years, Dunifer and others have criticized KPFA for having abandoned its progressive agenda. Many former KPFA staff members have relocated to Free Radio Berkeley and other Bay Area micro stations. Since the micro radio stations are so small, FRB broadcasts initially were carried out from various locations inthe Berkeley Hills. Broadcasting from different locations made the stations signal more difficult to trace (Fine, 1994). Eventually, Dunifer moved the operation to his home and workshop on Allstone Way in Berkeley.
According to four Declarations filed by FCC engineers on October 6, 1994, the local field office became aware of Free Radio Berkeley on the evening of April 25,1993. On May 2, 1993, FCC field agents again monitored Dunifers signal and tracked it to his home on Allstone Way. The FCC engineers reported in the Declarations that the occupants of the house denied the existence of the station. On June 1, 1993, the San Francisco Office of the FCC issued a Notice of Apparent Liability (NAL) to Dunifer for violation of Section 301 of the Communications Act, broadcasting without a license. The NAL carried a fine of $20,000, a excessive amount when compared to other NALs issued by the FCC for similar violations wherfines have ranged from$750 to $1,000 (FCC, 1989, 1990a-e, 1991a-c).
Challenging the FCC
Dunifer is a great believer in direct action and civil disobedience. Therefore, he views his decision to move directly to electronic civil disobedience and an open challenge to the FCC as a logical one. It is Dunifer's stated intention to draw the attention of the FCC and force a court hearing on the legitimacy of the current regulatory scheme, a plan that has been fermenting since1990. Statements made by Dunifer and Hiken in their interviews confirmed this and suggested that CDC involvement occurred just prior to the broadcasts that led to theFCC issuing the NAL.
The CDC is part of the National Lawyers Guild and focuses on issues of equitable access to all forms of communication, particularly electronic. Hiken, a University of California, Berkeley educated lawyer and alumnus of the Berkeley Free Speech Movement, worked on research in support of Mbanna Kantakos broadcasts since 1989. However, after an initial action, the FCC did not move directly against Kantako. Therefore, Hiken and the CDC simply prepared data both in support of Kantakos case specifically and micro radio in general.
Dunifers decision to make his station fixed instead of mobile occurred after an introductory meeting with lawyers from the CDC including Hiken and Peter Francks. This change allowed the FCC to locate the station more easily and there by draw the FCC into court.
Dunifer and Hiken believe that their three-part strategy was well-planned and executed. First, Dunifers acts of electronic civil disobedience drew the FCC into court. Second, there was a strong effort to get other activists across the country to also engage in acts of electronic civil disobedience. Third, Dunifer and Hiken reasoned that these acts of electronic civil disobedience would force the FCC to justify its regulatory scheme in open court in a timely fashion.
Micro Radio Spreads Across the Bay
Food Not Bombs, a feed-the-poor activist organization, also got behind the micro broadcasting movement and was a partial sponsor of Radio Libre, broadcast from San Francisco. According to an article in Reclaiming the Airwaves (McHenry, 1995), as well as Dunifer and Schreiner, Food Not Bombs regularly supplies programming to many micro radio stations.
The FCC sustained the CDCs opposition to Dunifers Notice ofApparent Liability. Under the operating rules of the FCC, there was no hearing or opportunity for argument. The local FCC office then issued a Notice of Forfeiture (NOF), confirming its assertion of liability. The CDC challenged the Notice of Forfeiture. In December 1993, the agency reiterated the propriety of the Notice, and informed Dunifer and his counsel that they could file an application for review, which was a petition to review that decision. The FCC took no further action until December 1994, 18 months after the initial NAL. Hiken stated that at this point, and without further contacting the CDC or Dunifer, the FCC filed for a Preliminary Injunction and Declaritory Relief with the Federal District Court for the Northern District of California to enjoin further broadcasts by Dunifer. Clance confirmed that this action was consistent with FCC actions in the past concerning unlicensed broadcasting. If the court enjoined Dunifer from broadcasting, and he ignored the injunction and continued to broadcast, he would be in contempt of court. This would then case leave the case to the U.S. Attorneys office to prosecute (Bender, 1988; Boyd, 1983; Kuipers, 1989).
United States v. Dunifer
At its most basic level, Dunifers decision to broadcast without a license was the primary issue. According to Silberman and the FCCs Declaratory Statements filed October 6, 1994, broadcasting without a license was why the FCC took action to bring Dunifer to court. In Silbermans view, this was the only pertinent issue in the eyes of the FCC. From Dunifer's perspective, to concentrate on this would miss the primary rationale behind his action. Dunifer said that he made a calculated decision to challenge the regulatory structure of the FCC in a forum and manner with which he, as an activist, was most familiar: through civil disobedience and in court.
The FCC Position
Silberman, as the attorney for the FCC, stated that this was a simple case of someone (Dunifer) who wished to broadcast without obtaining a license. Silberman noted that all cases brought before a judge concerning the FCCs right to regulate the airwaves in a manner determined by the agency have been decided in the favor of the FCC. All precedents in federal court and the U.S. Supreme Court support this contention. Further, all major issues concerning the right of the FCC to regulate as it saw fit, barring an act of Congress, have been argued and fallen in the FCCs favor.
Silberman did state that if Dunifer wanted to be able to obtain a permit to broadcast below the 100-watt minimum, he could have taken one of the two paths made available to the public to challenge FCC regulations: a request for a waiver or a petition for a rule making. A rule making is a request by petition for a change in a particular regulatory structure (FCC,1993a). These options involve a review by the Commission itself as to the merits of the request brought through official channels. Dunifer did not attempt these officially-sanctioned avenues to alter the regulation scheme to allow him to broadcast legally. Dunifers stated motivation for violating Section 301, to challenge the regulatory scheme, had no merit in Silbermans view since an administrative solution was possible.
The FCC also took the position that the court needed to file a preliminary injunction against Dunifer to enjoin him from broadcasting because of irreparable harm caused by his illegal transmissions. The FCC supported its claim of irreparable harm in two ways. First, although unable to substantiate the claim in court, the FCC accused Dunifer of interference with licensed broadcasters. Second, the FCC argued that Dunifers actions harmed the regulatory scheme itself (FCC, 1995b). According to Silberman, unchecked violation f the law would cause an increase in violations and lead to chaos on the airwaves similar to what occurred inthe late 1920s. If the court were to issue such an injunction, any future broadcast would leave Dunifer in contempt of court.
Hiken, in arguing Dunifers case, contended in the January 20, 1995 court hearing that the Commissions rules, which did not provide for licensing of a stand-alone transmitter under 100 watts, were overly restrictive and constituted a total ban against micro broadcasting. Therefore, the Commissions rules violate Dunifers First Amendment right to free speech. A stand-alone transmitter sends primary signals, as opposed to an FM translator, which simply boosts a signal to increase range. FM translators are legal and in wide use (FCC, 1995b). Thus, the Commissions failure to establish regulations for a micro power radio service violated its mandate to create a regulatory scheme that was the least restrictive in terms of state interest (National Lawyers Guild, 1992)
Moreover, Hiken argued in the court hearing that because the FCC had refused to issue low-power radio licenses, a large percentage of individuals could not afford to participate in this medium. The cost of establishing a 100-watt radio station is easily in excess of $100,000, much of it in legal, licensing, and engineering fees. This leaves only the wealthy in control of the airwaves (National Lawyers Guild, 1992). During his interview, Dunifer said that he believed that most of these costs are artificial and are designed to restrict access, violating his interpretation of the FCCs mandate to provide for the public interest,convenience, and necessity. In the court brief, Dunifers attorneys argued that such a financial qualification did not serve the public interest, and violated the equal protection clause of the Constitution (National Lawyers Guild, 1992).
Additionally, Hiken argued in the court hearing that the Commissions rules violated international treaties such as the U.N. Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the American Convention on Human Rights. Since the United States is a signatory of these treaties, these treaties have become U.S.law. The central theme of these treaties, as applied to this case, is that of a persons right to communicate freely with others (FCC, 1995b; National Lawyers Guild, 1992).
Hiken responded to the FCCs assertion that Dunifer had administrative alternatives to breaking the law in three ways. First, Hiken stated that such alternatives were not real alternatives because of the cost and time involved. Second, he argued that Dunifers individuals Constitutional rights were violated because he did not have the opportunity to apply for a broadcasting license. Third, Hiken stated that the FCC rule-making and waiver process, which allow the Commission itself to rule without review until an appeal to thecourts, is an excessively lengthy process.
Judge Wilkens Decision Concerning United States v. Dunifer
Micro-proliferation: A Can of Worms
From the period starting in February 1995 and ending in August1995, the number of micro radio stations in the Greater Bay Area and Northern California increased markedly. The original three were Free Radio Berkeley, San Francisco Liberation Radio, and Radio Libre (located in the Mission District in San Francisco). The Free Communications Coalition and Free Radio Santa Cruz (FRSC) reported additional micro radio sources, including stations in Saulsalito, Hunters Point in San Francisco, San Jose, and Mendicino County, as well as other parts of rural Northern California (Ewell, 1995; On the Air, 1995). A major area of proliferation was in Santa Cruz County, where three stations were on the air and three more were being constructed
United States v. Dunifer Continues
In response to Dunifers allegations that the current regulatory scheme violated his First Amendment right of free speech, the FCC cited 60 years of statutory procedure in establishing its rules and regulations, as well as the requirement by Congress that an individual file a written application for a license. Further, the FCC argued that Congress gave the FCC the power to design a regulatory scheme as the FCC saw fit. The purpose of a license was to prevent interference by reserving spectrum space for that signal. If no license were required, conflict and interference could not be prevented, only dealt with after the fact. This situation would be "costly, disruptive, inefficient, and directly contrary to the expressed will of Congress" (FCC,1995b, p. 3).
While it is true that possibilities for conflict and interference in an unlicensed spectrum exist, Daniel S. Emrick, Chief of Investigations Branch, Enforcement Division, Information and Compliance Bureau, stated that conflict and signal interference regularly occur between licensed commercial broadcasters. Thus, licensing does not prevent interference. Rather, station licensing provides a mechanism for resolving disputes concerning interference and other issues. Moreover, Hiken was not arguing that Dunifer was exempt from needing a license to broadcast. He argued that Dunifer had not been given the opportunity to obtain a license because the FCC did not license low-power broadcasting.
Several court cases have established the lack of any constitutional right to use radio facilities (Red Lion Broadcasting Co. v. FCC [395 U.S. 367, 390, 1969], National Broadcasting Co. v. US. [319 U.S. 190, 227, 1943], and Turner Broadcasting System v.FCC [114 S. Ct. 2445,2456-57, 1994]). Since there is limited spectrum space, the government has an interest in regulating it. The concept that individuals need a license to broadcast was widely accepted by the courts and most broadcasters. Dunifer is simply arguing for the ability to apply for a micro power broadcasting license
The FCC contends that Dunifer did not follow agency procedures to attempt to change the rules concerning low-power broadcasting. From the FCCs perspective, there are administrative remedies available rather than breaking the law (FCC,1995b). Silberman, an FCC attorney, expressed in his interview his objections to Dunifer's disregard for established rules and procedures. However, the cost and time of such a rule-making or waiver campaign makes that strategy unavailable to most people. Such an endeavor could take years and cost hundreds of thousands of dollars, much of the cost in attorney fees. According to Hiken, media law is a very exclusive club usually involving millions of dollars in lawyers fees. Thus, Hiken's position is that pursuing administrative avenues to operate a low-power radio station presented a financial burden most people could not afford.
Dunifer and the CDC also argued against a rule-making or waiver request because they believed micro broadcasters should not have to ask permission for what should be a fundamental right (Ewell, 1995). Moreover, the fact that the FCC had been aware of Kantakos' operation since 1989 and had taken no further action, led the CDC to contend in its court brief that the FCC itself should have taken steps to allow for this new technology to enter the regulatory scheme (National Lawyers Guild, 1992). The remedy of a waiver would also allow only Dunifer to broadcast, rather than allow the broader use of this technology. As Hiken, Dunifers CDC lawyer, stated "The principle is that micro stations have the right to broadcast, and thats what this things about. ' He went on to say, "look at their Act [the Communications Act]. It obligates upon them [the FCC] the mandate that they assist the American people in incorporating new technologies, in initiating on their own rule-making procedure...forensuring the broadest use ofthe airwaves." Thus, the CDCs position was that the FCC had its chance to recognize and address this issue in 1989 and when the FCC failed to act, the CDC challenged the FCC's policies and procedures.
In the FCCs Memorandum Opinion and Order, the agency found Dunifers claim that he lack of a low-power radio service violated his right to free speech under the First Amendment was unavailing in several ways (FCC, 1995b). First, the FCC argued that these technical specifications were not based on the content of speech, and, therefore,were not speech related. Second, there need only be reasonable means of promoting the statutes public interest standard to survive a First Amendment challenge. Third, FCC regulations meet the terms of the Intermediate Scrutiny Test, the statutory objective of ensuring fair, efficient, and equitable distribution of radio service. Further, "The Commissions rules pertaining to low power broadcasting services are reasonably related to this permissible statutory objective and are designed to allow the most efficient use of the spectrum" (FCC, 1995b, pp.4-5).
The FCC then devoted a section of its Memorandum Opinion and Order (FCC, 1995b) to the process involved in the establishment of regulations for low-power FM translators and rejected a request to allow them to have original programming. That would have permitted a defacto low-power service. The Commission went on to state that public hearings were held in the process of deciding to raise the minimum broadcasting power to 100 watts. After the public hearings were completed, the Commissions public interest determination to provide for increased power to these facilities [upgrade low watt to high watt] was based on its goal of providing, on a nation-wide basis, a stable, efficient, and diverse radio communication service (FCC, 1995b, p. 5). The FCC further noted Dunifer had a chance to participate in these hearings and did not.
While the FCCs arguments address the issues raised by Dunifer, several weaknesses can be identified in those arguments. First, the right of free speech addresses access as well as context. Thus, the First Amendment is concerned with both the ability to speak in a public place and the content of that speech. Dunifer and his attorneys argue that the FCC violated his FirstAmendment rights by denying him the ability to speak (Davidson, 1995). Similarly, the premise of a free press is historically based on the right to own and operate a literal press, in the mechanical sense, as a person sees fit (Altschull, 1990). In the case of FRB, Dunifer was arguing that he should be able to use his printing press, a micro radio transmitter. Second, the argument concerning the review of the low-power translator service was not examined in light of the Constitutional or access questions raised by the Dunifer case. Also, if low-power radio stations cause interference, it would seem translator stations would cause interference as well. They operate with the same relative power and differ only in that they re-broadcast other signals instead of originating programming. Third, limiting the number of radio stations would seem to hinder rather than facilitate diversity. Higher station wattage leads to a larger broadcast area resulting in fewer stations and less variety for a particular region of the country. Fourth, the FCC statement that Dunifer did not participate in the1978 decision to establish a limit on minimum broadcasting power (69 FCC 2d 240), 15 years before the NALwas issued, was accurate, although irrelevant. The United States' system of government has always been open to constant revision, and is revised on a regular basis. Thus, while Dunifer did not participate in the 1978 hearings, this would not preclude him from seeking changes in 1995 FCC practices and policies.
The FCC also reiterated its stand on the efficient use of the spectrum as it has since the1930s. The FCC (FCC, 1995b) argued that high-power stations typically have better quality equipment, bigger and better signal strength, and take up better-defined areas. The low-power transmitters typically used by unlicensed radio operators do not meet technical standards concerning signal drift and stability which will inevitably led to interference (FCC,1995b, p. 7). Thus, rules and regulations are needed to keep the spectrum clear. In addition, the FCC argued that low-power FM cannot adequately service communities and mobile audiences and could interfere with larger stations.
A smaller station within the contour of a larger station will cause interference, but only if the two stations were on, or near, the same frequency. As Emrick, an FCC official, noted, prevention of interference is the primary reason for licensing radio stations. Therefore, this interference problem would be less likely to exist if the FCC licensed micro radio stations as the agency has done with larger stations. Thus, micro radio stations would be no more likely to cause interference than higher-wattage stations. In fact, 10-watt Class D FM stations were licensed prior to1978. According to FCC documentation, the decision to no longer license such stations was not based on interference or frequency instability (69 FCC 2d 240, 1978).
As it has in the past (69 FCC 2d 240, 1978; McChesney, 1993), the Commission repeatedly returned to the bigger is better (up to a point) technical perspective (FCC, 1995b). However, another issue was raised in Memorandum and Opinion Order (FCC,1995b): Maximum wattage stations are more economically feasible and a micro station cannot cover enough area to make a profit. However, micro radio stations generally incur minimal costs and have a non-commercial orientation (Ewell, 1995; Fine, 1994). Thus, although the FCC's concerns are applicable to higher-wattage stations, this particular economic argument is irrelevant in the case of the typical micro broadcasting operation.
Dunifer used the Canadian system of regulating micro radio as a model for such a system in the United States (FCC, 1995b; National Lawyers Guild, 1992). The FCC responded that even Canada requires an individual to obtain a license before broadcasting (FCC, 1995b). This is an easy task since the Canadians license micro radio, thus making it unnecessary to broadcast illegally. The main thrust of the Commissions argument was centered around Canada's lower population and broadcast operation densities. While these are concerns, the more important issue is there can only be as many stations as there are frequencies. If micro radio were licensed, the number of low-power stations could be regulated.
Dunifer also argued that since his transmissions did not interfere with a licensed operation or cross state lines, he was protected from prosecution under the Commerce Clause of the Constitution (FCC, 1995b; National Lawyers Guild, 1992). Although this argument has been used previously by unlicensed broadcasters, it has been repeatedly rejected by courts in the past (Phipps, 1991). Hiken stated that the rationale underlying this argument was that none of the applicable cases involved micro radio and most of the stations in past cases did cause interference. The FCC also mentioned in this section of its Memorandum Opinion and Order that if micro radio were unregulated under the Commerce Clause, then the proliferation of stations would lead to interference (FCC, 1995b). However, according to Hiken, such interference, if it involved a licensed broadcast station, would fall under the Commerce Clause and could be regulated.
The FCC also stated that Congress gave the FCC the mandate to operate in the public interest, convenience,and necessity (FCC,1995b; p. 10). Defining what this mandate constituted was left to the discretion of theFCC. Dunifer argued that the current regulatory scheme disallows micro broadcasting, denies access to the poor and minorities, and therefore violates the Equal Protection Clause of the Constitution. The Commission reserves the right to define what was in the public interest, and did not see a micro broadcast service as being in the definition of the public interest, despite the increased access to the poor and minorities (National Lawyers Guild, 1992). Although the technology is available for these people to broadcast, the artificial requirements of minimum power, legal, and licensing fees make it inaccessible.
Dunifer's attorneys listed a number of international treaties in relation to the right to communicate with others (National Lawyers Guild, 1992). The Commission dismissed this argument, having examined these treaties and finding no specific mention of micro broadcasting. The FCC did not comment on the concepts of communication discussed. The agency added that there was nothing contained within those treaties that would give someone a right to broadcast without a license or without the permission of the FCC. However, Dunifer did not request the right to broadcast without a license. Rather, he broadcast without a license as a protest against not having a micro broadcasting license available.
The remainder of the FCC's arguments in its Memorandum and Opinion Order (FCC,1995b) was directed towards the forfeiture and NAL process itself. Dunifer contended that he should have been warned before he was fined. (FCC,1995b). The FCC noted there is nothing in FCC rules and regulations that require it to issue warnings.
The FCC did reduce Dunifer's fine to $10,000 from $20,000. Although the $10,000 fine is in excess of the standard fine (Davidson, 1995), FCC regulations allow for a maximum fine of $10,000 per day for parties other than those who have sought Commission authorization. The FCC allows for flexibility in enforcement procedures and the levying offines: "[T]he nature, circumstances, extent, and gravity of the violation and, with respect tothe violator, the degree of culpability, any history of prior offense, ability to pay, and such other matters as justice may require can be taken into consideration when assessing fines" (FCC, 1995b,p. 13). The NAL only cited one violation, therefore the maximum fine for one violation was issued (FCC, 1995b). The FCC pointed out one of Dunifer's numerous press interviews as an example of his intransigence (FCC, 1995b).
Finally, Dunifer stated that he could not afford to pay such a fine (FCC, 1995b). Financial ability to pay fines has been a major mediating force in forfeiture procedures. Examination of FCC printouts concerning fines and violations (FCC, 1995a) indicate that theFCC routinely takes ability to pay into account when deciding on the final amount of a forfeiture order. However, Dunifer had not filed any financial statements with theFCC concerning the ability to pay. Considering Commission history concerning these matters, any compelling financial information provided by Dunifer in the future would likely result in the lowering of the fine (FCC, 1995a). The Commission's response ended simply with the statement that Dunifers arguments were denied and a fine was issued..
The Next Phase
Several other conferences were scheduled over the following months. These were meeting to dicuss legal form and function as well as time tables. In April of 1996, Wilken heard further arguments. The FCC failed to convince the Judge that she lacked jurisdiction on Constitutional matters. After listening to aguments, Wilken took the case under advisement and as of this writing has not issued a decission. When the case does come to trial, the CDC stated its intention that these issues will be debated using testimony by expert witnesses. At that point, Judge Wilken is expected to review the issues involved and address the FCC request for a preliminary injunction. Considering the stated positions of both parties, and the unlikelihood of either the FCC or Dunifer conceding, any decision made by Judge Wilken would likely result in an appeal with the probability of the case reaching the Supreme Court. Silberman and Hiken confirmed they were willing to go as far as necessary to prevail .
In the mean time, micro radio stations around CA and the US are experiencing success and failure. Although many stations have appeared on the spectrum, other have gone off-the-air. The primary cause, according to reports from the micro radio internet network, is the lack of support in some communities and financial hardship. The primary example of this is Free Radio Santa Cruz. FRSC has been off-the-air since August of 1996, when they were evicted by the police after a struggle from the house the transmitter was located in . Because of the lack of local housing, and the preasure brought on landlords by the FCC and local authorities, FRSC has been unable to find a home. They broadcast from out doors on occassion, but this has stopped with the advent of winter weather.
Free Radio Berkeley, San Francisco Liberation Radio, and other bay area micro stations are still on the air. A majority of the effort now being the creation of a organization to coordinate and assist micro radio activity. Conferences held in April and November 1996 solidified the network and brought over a hundred micro broadcasters and their supporters from all over the US as well as from Canada, Haiti, and Mexico.
Conclusions and Implications
Previous unlicensed broadcasters sought to broadcast on their own terms for reasons ranging from profit to political ferment. In contrast, the present micro broadcasting movement, generally embraced by dedicated activists, is grounded in the fundamental principle of legitimate access to a means of communication. The primary proponents of this movement have already committed their lives to pursuing their definition of social justice, and they view micro radio as an important tool in attaining their goals. Thus, the use of radio is not an end to itself, nor is the right of a particular person, Stephen Dunifer, or Richard Edmonson to broadcast. Rather, micro radio is a means to achieving the principle of democratic communication. As Hiken explained, "One consideration that is important to realize is that micro radio is only one prototype of the concept of democratic communication. . . . So, its important to look at micro radio in that overall context, and not just as an end to itself." It is this view of micro radio as a tool of social change that the FCC fails to publicly acknowledge. The idea of democratic communication extends far beyond the initial arguments concerning micro radio. Average people, as opposed to large public or private institutions, having the ability and access to communication technology, could alter the landscape of mass communication. All those interviewed who were participating in micro radio or the Free Communications Movement have interests, ideas, and plans for the major means of electronic communication, including television, the Internet, and computer technology. The technology exists for innovations that will allow ordinary people to produce as well as consume media, to own the means of media production and communicate with others in their own language and on their own terms. This would be a distinct shift from the dominant mass communication paradigm which is dictated by traditional media sources, most of which are profit driven. Because of the low cost, these new technologies could eliminate the restrictions that are inherent in profit-driven mass media. Even public broadcasting is restricted by the immense costs of maintaining large facilities and the need to please revenue-generating target audiences along with corporate sponsors and underwriters.
Micro radio's legal battle goes beyond the abstract concepts of electronic access by the average person. Those involved make it clear that they see the media as predominantly controlled by wealthy corporations and the privileged few, the haves, who cooperate with the government to maintain the status-quo. This is a direct threat to the survival of civil rights, as well as the physical survival of the burgeoning underclass, the have-nots or the dispossessed, as Schreiner puts it. In the view of Schreiner, and many of the micro broadcasters, denying media access is one of several ways in which the rights of people whose only crime is being poor or not motivated by the drive to acquire property, cash, and power, are eliminated. This alienation of the have-nots is evident on the political right as well as the left. Media as community organizing tools are apolitical, and with all likelihood, will be embraced by many people of different ethnic and political persuasions who feel threatened by the public and private powers which control these resources. Those involved in the Bay Area micro broadcasting movement stated without reservation that their actions will continue, whether or not the FCC approves.
Altschull, Herbert J. (1990). From Milton to McLuhan: The ideas behind
American journalism. New York: Longman.
Milner, Greg. (1993, August 13). Rebel radio: Stephen Dunifer vs. the
FCC. Express, pp. 1, 1217.
Unpublished Legal Brief
National Lawyers Guild: Committee on Democratic Communication. (1992). Brief on the constitutional and human right to broadcast without government interference. Mbanna Kantako, micro radio practitioners, the communities of the U.S. vs. the Federal Communications Commission (USA). San Francisco, CA.
Federal Communications Commission
69 FCC 2d 240, 1978; FCC LEXIS 947 (FCC 78384)
Metro Broadcasting Inc. v. FCC, 97 U.S. 547 (1990).
Complaint for Declaratory and Injunctive Relief (United States District
Court for the Northern District of California, October 6, 1994, No. C 94-3542
Communications Act of 1934, 48 Stat. 1064 (1934), 47 United States C.A. @ 151 et. seq.
Communications Act of 1934, @ 311, 47 United States C. 115 (1993).